Dismissed

Ramakrishnan v. Ponnan

Kerala HC25 Nov 2016RSA/1032/2016

Case brief

AI extract

What is this about?

This regular second appeal pertains to a suit for declaration of title and recovery of possession of paddy fields. The High Court upheld the trial court's finding that the disputed C schedule property formed part of the plaintiff's A schedule property based on the commission report, rejecting the defendant's claim of title and possession. The regular second appeal was dismissed.

What did the court decide?

The regular second appeal (RSA.No. 1032 of 2016) has been dismissed. Declaration regarding the customary right of the defendant to walk through the ridge is noted.

Ramakrishnan Vs Ponnan — Property and Title | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.HARILAL

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FRIDAY, THE 25TH DAY OF NOVEMBER 2016/4TH AGRAHAYANA, 1938

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RSA.No. 1032 of 2016 (F)

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AGAINST THE JUDGMENT & DECREE DATED 12-10-2015 IN AS 143/2013 of II ADDL. DISTRICT COURT, PALAKKAD

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AGAINST THE JUDGMENT & DECREE DATED 19-07-2013 IN OS 264/2009 of MUNSIFF COURT, ALATHUR

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APPELLANT/APPELLANT/DEFENDANT:

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RAMAKRISHNAN

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S/O. APPU, AGED 76 YEARS, MOOPANPURA, CHANNAMGADU, KOTTAYI AMSOM AND DESOM, ALATHUR TALUK, PALAKKAD DISTRICT.

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BY ADVS.SRI.BINOY VASUDEVAN

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SMT.K.J.ANITHA SRI.M.R.MANIKANTAN SMT.V.SANDHYA

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RESPONDENT/RESPONDENT/PLAINTIFF:

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PONNAN

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S/O. KUTTAN, AGED 69 YEARS, MOOPANPURA, CHANNAMGADU, KOTTAYI AMSOM AND DESOM, ALATHUR TALUK, PALAKKAD DISTRICT-678102.

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BY ADV. SRI.JOHNSON VARIKKAPPALLIL

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OKB

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K.HARILAL, J.

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R.S.A. No.1032 of 2016

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Dated this the 25^th day of November, 2016

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JUDGMENT

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The appellant is the defendant in O.S.No.264/2009 on the files of the Munsiff's Court, Alathur. The above suit was one for recovery of possession on the strength of the title. According to the plaintiff, plaint A schedule property belongs to him by virtue of Ext.A1 partition deed and he is in possession and enjoyment of the said property. Plaint B schedule property, which lies on the southern side of plaint A schedule property, belonging to the defendant. Both A & B schedule properties are paddy fields. There is a ridge between A & B schedule properties. Further, it is averred that when the plaintiff was away from the place, the defendant encroached upon southern portion of A schedule property, by extending the southern ridge towards north and took possession of C schedule property having an extent of 3.5 cents from A schedule

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RSA.1032/16 :2:

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property. Thereafter, the plaint A schedule property was measured with the help of a private surveyor and found that C schedule property has been lost from his possession. When he approached the defendant claiming return of C schedule property, the defendant has not responded to the said request and in that circumstance the plaintiff was constrained to file the aforesaid suit seeking declaration of title and recovery of possession.

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In the written statement, the defendant contended that plaint C schedule property forms a part of plaint B schedule property and the northern and southern ridges of plaint B schedule property belongs to him. Plaint C schedule property solely belongs to the defendant and the defendant never attempted to trespass in plaint A schedule property. Thus, the plaintiff has neither title nor possession over plaint C schedule property and hence the suit is liable to be dismissed.

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On the aforesaid rival pleadings both parties adduced evidence and a commission had been appointed to measure out the property in accordance with resurvey plan and the Commissioner filed a report and plan which

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RSA.1032/16 :3:

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are marked as Exts.C1 and C1(a). The trial court rightly framed the issue whether the C schedule property forms a part of plaint A schedule property. Admittedly, plaint A schedule property is comprised in R.S. No.220/3 and plaint B schedule property is comprised in R.S. No.220/5. Ext.C1 report and C1 (a) plan show that C schedule property also is comprised in R.S.No.220/3. When the defendant was examined as D.W.1, he admitted that he has no right over any property comprised in Sy.No.220/3. Thus, the commission report is supported by the testimony of D.W.1. The commissioner has measured the extent of C schedule property. The defendant does not have any case of adverse possession over C schedule property. So also, the defendant has not chosen to dispute the resurvey measurement of Ext.C1(a) survey plan.

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The defendant has not filed any objection to the commission report and plan. In the absence of objection from the part of the defendant, the courts below are justified in accepting Exts.C1 report and C1(a) survey plan as such. Thus, it stands proved that plaint C schedule property forms a part of A schedule property. The above

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RSA.1032/16 :4:

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finding is supported by Exts.A1 to A3 documents produced by the plaintiff. Ext.A1 is the title deed of partition and Ext.A2 is the possession certificate and Ext.A3 is the basic tax receipt. There is no contra evidence contradicting the reliability of Exts.A1 to A3.

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In short, C schedule property forms a part of A schedule property. The plaintiff claims title over the C schedule property on the strength of Exts.A1 to A3 and it stands proved. The defendant could not produce any document to substantiate his title over C schedule property. In the above analysis, the trial court is justified in finding that the plaintiff has title and possession over plaint C schedule property and the defendant is a mere trespasser only. I do not find any reason to interfere with the said finding. No question of law arises for consideration in this appeal. This Regular Second Appeal will stand dismissed.

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Even though the title, possession and right of recovery over plaint C schedule property is declared, the decree passed in favour of the respondent/plaintiff will not stand in the way of the defendant's customary right to

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RSA.1032/16 :5:

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walk through the ridge for effecting agricultural activities, without causing any kind of damage to the ridge.

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All pending interlocutory applications will stand closed.

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Sd/K.HARILAL, Judge.

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okb

Ramakrishnan v. Ponnan

Case brief

What is this about?

What did the court decide?

Ramakrishnan v. Ponnan

Case brief

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What did the court decide?

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